Kandler v. Dunn Paper, Inc.

United States District Court, Eastern District of Michigan, Southern Division

February 13, 2015

CARL KANDLER, Plaintiff,v.DUNN PAPER, INC., Defendant.

ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (DOC. 7)

AVERN COHN, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

This is an employment discrimination case. Carl Kandler (Plaintiff) is suing Dunn Paper, Inc. (Defendant), alleging discrimination on the basis of age in violation of the Age Discrimination in Employment Act (ADEA) and the Michigan Elliott-Larsen Civil Rights Act (ELCRA), and on the basis of disability in violation of the Americans with Disabilities Act (ADA) and the Michigan Persons with Disabilities Civil Rights Act (PWDCRA). In addition, Plaintiff alleges retaliation under the Michigan Worker’s Disabilities Compensation Act (WDCA).

Now before the Court is Defendant’s Motion for Summary Judgment (Doc. 7). For the reasons that follow, the motion will be granted.

Defendant operates a paper mill in Port Huron, Michigan. Plaintiff, born in 1939, was employed by Defendant as a millwright and pipefitter. He began working for Defendant in 1979. As of early 2014, he was approximately 74 years old. Plaintiff is diabetic. He began receiving social security retirement benefits at age 65.

Defendant’s paper mill consists of a basement where paper rolls are stored, a ground level where pumps and motors are located, and an upper level where paper machines are located. Plaintiff’s job duties included repairing equipment and paper machines, often requiring him to climb a ladder to access the taller paper machines. In addition, he was tasked with working on pipes that run along the ceilings of the ground floor and upper floor. Plaintiff often worked afternoon and midnight shifts where he was the only millwright working. Additionally, the paper mill does not have air conditioning, often reaching below-freezing temperatures during the winter and temperatures exceeding 90 degrees during the summer. Because the paper mill uses a large amount of water, the floor is often wet in some places and constantly wet in others.

On March 17, 2013, Plaintiff suffered a workplace injury. That day, his feet became wet after standing in a foot-and-a-half of water while repairing a broken sump pump. After completing the repairs, Plaintiff placed his feet by a heater to warm them. However, because of his diabetes, he has no feeling in his feet and did not realize until later that he burned his foot. Plaintiff was treated at the hospital and reported the injury to Defendant. Plaintiff’s doctor took him off work on March 18, 2013.

During the time Plaintiff was off work, Plaintiff collected workers’ compensation benefits. Around the same time, Defendant’s human resources personnel were considering whether Plaintiff’s disability benefits could be “offset” under the WDCA based on the Social Security benefits he was receiving. Human resources personnel determined that Defendant had not sought statutorily permitted reductions in benefits, and that Plaintiff was receiving more in the way of benefits than he was entitled to. Defendant disputed Plaintiff’s continued receipt of disability benefits with the Workers’ Compensation Agency (WCA), which resulted in age-based and wage earning capacity reductions in Plaintiff’s benefits. In a letter dated September 26, 2013, Plaintiff later received a letter from the WCA advising him that his workers’ compensation benefits had been reduced because he was also collecting Social Security retirement benefits. .

On August 27, 2013, Plaintiff’s doctor released him to return to work without restrictions effective September 3, 2013. On September 16, 2013, Plaintiff went to the hospital after noticing that the wound on his foot had reopened. Plaintiff’s doctor subsequently took him off work indefinitely until the site healed.

Between September and December 2013, Plaintiff periodically went to the hospital for treatment for his foot. During this time, Plaintiff’s doctor told him that he could no longer wear work boots and should limit himself to wearing diabetic boots. Plaintiff acknowledges that this kind of boot would not protect his feet from wetness or from falling objects. On January 7, 2014, Plaintiff’s doctor provided him a return-to-work note with the following restrictions: no getting his feet wet, climbing ladders, or exposure to extreme temperatures. To Plaintiff’s knowledge, these restrictions are permanent and continue in place.

Plaintiff told these restrictions to Richard Harter, Defendant’s human resources director, who then consulted with Plaintiff’s supervisor. Given Plaintiff’s restrictions, management determined that, because the floor of the paper mill was always wet and because the paper mill was frequently subject to extreme temperatures, there were no hourly positions or other jobs that Plaintiff could perform. Further, although Defendant provides temporary light duty assignments for employees that cannot perform their regular job because of temporary work restrictions, it does not provide permanent light duty assignment to employees with permanent work restrictions.

In February 2014, Plaintiff went to the paper mill to receive his vacation pay. While there, he asked Harter whether there had been a meeting between the company and the union, and inquired about his workers’ compensation benefits and his sickness and accident (S&A) disability benefits. When Plaintiff asked why he had not been receiving these benefits, Harter replied, “a lot of it has got to do with your age.” Plaintiff says that Harter told him that he “should probably get a lawyer.” However, no derogatory comments were made about his medical condition or his workers’ compensation claim. This is the only conversation during which Plaintiff and Harter discussed these issues.

Although disputed by Plaintiff, Harter says that during their conversation, he told Plaintiff that Defendant could not accommodate his permanent restrictions, and that he sought clarification regarding what the doctor meant by “extreme temperatures.” Harter says that several times he tried to explain the age-based reductions in workers’ compensation permitted under the WDCA and, because Plaintiff did not appear to understand his explanation, he suggested that Plaintiff speak to “counsel.” Defendant placed Plaintiff on an unpaid leave of absence; however, given the permanent nature of Plaintiff’s work limitations, this was tantamount to a discharge.[2]Defendant has not hired anyone to replace Plaintiff; rather, Defendant has for the time being filled Plaintiff’s position with a millwright from a different shift.

B. Plaintiff’s Legal Claims

Plaintiff makes claims under (1) the ADA and the PWDCRA, claiming that Defendant discharged him and in so doing discriminated against him because of his disabilities; (2) the WDCA, claiming retaliation against him for exercising his rights under the act; and (3) the ADEA and the ELCRA, claiming ...

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